Saturday, July 30, 2011
9:30 A.M. – NOON

Youth for Human Rights International presents: REVERSING HUNGER
with Irving Sarnoff
Founder, Friends of the United Nations

Admission Free. Donations Accepted.
Brunch, with presentations and panel to follow.

Where: Church of Scientology of Pasadena
35 S. Raymond Ave, Pasadena, CA 91105
(626) 792-7533

RSVP: Michele Kirkland (323) 663-5797
director@youthforhumanrights.org

Copyright © 2011 Youth for Human Rights International. All rights reserved. Photo: ShutterStock.

Saturday, July 30, 2011
9:30 A.M. – NOON

Youth for Human Rights International presents: REVERSING HUNGER
with Irving Sarnoff
Founder, Friends of the United Nations

Admission Free. Donations Accepted.
Brunch, with presentations and panel to follow.

Where: Church of Scientology of Pasadena
35 S. Raymond Ave, Pasadena, CA 91105
(626) 792-7533

RSVP: Michele Kirkland (323) 663-5797
director@youthforhumanrights.org

Copyright © 2011 Youth for Human Rights International. All rights reserved. Photo: ShutterStock.

California’s Labor Codes do a lot to protect employees but there are some laws that benefit employers as well. For instance, unless a company and an employee agree otherwise, their relationship is presumed to be “at-will.” As defined, this means there is no promise or obligation of continuing employment. Either the employer or employee may terminate the working relationship at any time, for any legitimate reason or no reason at all, and with or without advance reason.

Thus, employers can potentially strengthen their protections against lawsuits for so-called “wrongful termination” by consistently defining the employment relationship as “at-will” in written agreements, company policies and verbal communications with employees. This includes everything from job announcements and interviews to employee handbooks, training seminars and employee reviews. Knowledgeable employers also strength employee’s “at will” status by avoiding references in written agreements and policies that promise or infer indicate job security or permanence.

There are of course “illegitimate” discriminatory reasons for which an employee may not be disciplined, terminated or denied benefits. In these instances, “at will” employment status is no justification. For instance, a company may not terminate an employee due to his or her race, gender or any other classification protected by law.

The ins and outs of at-will employment policies can sometimes be subtle. An experienced labor law attorney should be able to help.

July 27, 2011

California’s Labor Codes do a lot to protect employees but there are some laws that benefit employers as well. For instance, unless a company and an employee agree otherwise, their relationship is presumed to be “at-will.” As defined, this means there is no promise or obligation of continuing employment. Either the employer or employee may terminate the working relationship at any time, for any legitimate reason or no reason at all, and with or without advance reason.

Thus, employers can potentially strengthen their protections against lawsuits for so-called “wrongful termination” by consistently defining the employment relationship as “at-will” in written agreements, company policies and verbal communications with employees. This includes everything from job announcements and interviews to employee handbooks, training seminars and employee reviews. Knowledgeable employers also strength employee’s “at will” status by avoiding references in written agreements and policies that promise or infer indicate job security or permanence.

There are of course “illegitimate” discriminatory reasons for which an employee may not be disciplined, terminated or denied benefits. In these instances, “at will” employment status is no justification. For instance, a company may not terminate an employee due to his or her race, gender or any other classification protected by law.

The ins and outs of at-will employment policies can sometimes be subtle. An experienced labor law attorney should be able to help.

July 27, 2011

The Equal Employment Opportunity Commission (EEOC) has issued its final rule, effective May 24, 2011, implementing the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The agency’s directive seeks to cement the ADAAA’s expanded scope of workers protected against disability discrimination.

The original ADA (1990) defines “disability” as: a) a physical or mental impairment that substantially limits one or more major life activities; b) a record of such an impairment; or c) being regarded as having such an impairment. The EEOC’s final rule supplies guidelines on how ADAAA will bring a larger number of persons under the ADA’s protections. For instance:

• Previously, an employee needed to show that he is “severely restricted” from carrying out one or more major life activities (e.g, walking, talking, eating) to qualify as “disabled” under the law. Now, a worker needs only to demonstrate he or she is “substantially limited” compared to most people;
• Certain impairments are now almost always to be found to impose “substantial limitations” by definition, including, but not limited to cancer, autism, HIV/AIDS, cerebral palsy, multiple sclerosis, muscular dystrophy, diabetes, epilepsy, intellectual disabilities (formerly called mental retardation), major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder and schizophrenia;
• The determination of whether an impairment substantially limits a major life activity requires an individualized assessment (as was true prior to the ADAAA);
• With one exception (“ordinary eyeglasses or contact lenses”), the determination of whether an impairment substantially limits a major life activity shall be made without regard to the correcting or helpful effects of mitigating measures, such as medication or hearing aids; and
• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

The new EEOC rule thus directs the inquiry more toward whether there was a discriminatory act and away from fine points on whether the worker’s condition fits the strict definition of disability. The rule of thumb is to always base personnel decisions on sound business factors with “management radar” on high alert when dealing with such decisions concerning persons saddled with physical or mental impairments.

A knowledgeable employment law attorney can and should assist in understanding what precautions to take.

Maintaining Workplace Dress and Appearance Codes

As one never gets a second chance to make a first impression, many employers make it their business to specify a dress code policy, particularly for workers who regularly greet and work with the public. Setting such standards is a proper commercial practice of course, so long as management is well-trained on fielding good faith requests for reasonable accommodation based on religious beliefs or practices. See, March 4, 2011 article, Accommodating Religion in the Workplace, Avoid the Employment Discrimination Gallows.

Of course, some companies simply require uniforms. In a business office where employees choose their daily clothing, the dress code issue should balance the level of professionalism management wishes to convey to the public with common sense. For instance, a set of standards that is on the overly restrictive, micro-management side of the scale might adversely affect morale. On the other hand, a vaguely worded policy that permits “casual” could be misread as condoning “sloppy.”

Dress code policies can cover any limitations on hair styles, jewelry, and “body art” as well as specify a higher level of professional appearance on particular occasions, for example public gatherings and presentations. It is also proper to spell out management’s option to request a clothing change in the event an employee comes to work in a style or manner out of synch with the intended standard.

For help creating workable, legal employee policies, contact us about our signature handbook and forms.

EEOC’s Recent Hearing on Out-of-Work Job Applicants

In Being Unemployed Just Got Harder (February 16, 2011), we reported the U.S. Equal Employment Opportunity Commission’s (EEOC) impending hearing on a possible national trend of hiring only those currently employed — a choice certainly not likely to help the country’s unemployment challenges.

In a post-hearing statement, EEOC Chair Jacqueline A. Berrien stated, “Today’s meeting gave the Commission an important opportunity to learn about the emerging practice of excluding unemployed persons from applicant pools.”

According to Helen Norton, University of Colorado School of Law, employers and staffing agencies have publicly advertised jobs in fields including electronic engineering, food service management, and real property financing with the explicit restriction that only currently employed candidates will be considered.

Assistant Secretary of Labor for Policy William Spriggs presented national employment statistics indicating that minorities, particularly African Americans and Hispanics, represent the majority of those who are unemployed. Several other panelists claimed that using current employment as a selection criteria adversely impacts women, minorities, and individuals with disabilities, and called for EEOC guidance and enforcement to address the issue.

However, others testified that actual discrimination against the unemployed is rare. Fernan R. Cepero of the Society for Human Resource Management (SHRM) claimed his organization “is unaware of a widespread practice or trend to exclude unemployed individuals from consideration for available jobs.” Cepero concluded, “Employers, in SHRM’s experience, whether operating in the currently challenging economy or in more robust times, are focused on finding the right people for the job, regardless of whether or not they are currently employed.”

While the EEOC has yet to offer any regulation as a result of the hearing, the agency clearly sees any such hiring practices in a negative light.

A full list of panelists and their testimony is available online.

California Appeals Decision Confirms Salary Agreements for Hourly Employees That Foreclose Overtime Claims

A February 7, 2011 California Court of Appeal decision permits explicit written salary wage agreements for hourly workers that include overtime compensation within that set weekly amount.

In Arechiga v. Dolores Press, a former employee sued for alleged unpaid overtime. Working as a janitor, Arechiga had verbally agreed to work 11 hours a day, six days a week (a total of 66 hours per week). Thus, he asserted the company owed him overtime for the 26 hours he worked over the 40 hour/week threshold for regular pay.

However, Arechiga also entered a written agreement with the company stating he would be paid a weekly salary of $880 for his labor. The court held that California law (Labor Code section 515) does not outlaw “explicit mutual wage agreements” in which an hourly employee such as Arechiga and the employer establish a set salary that will include basic wage and overtime pay and in which the overtime component is at least one and one-half times the basic rate.

As Arechiga had a set schedule, the court found that the parties had intended to divide his $880 weekly compensation to cover all those hours, including $445.60 to cover the 40 hours of regular time (at $11.14/hour) and $434.46 to cover the 26 hours of overtime (at $16.71/hour).

The decision confirms that employers and hourly employees may negotiate for written “explicit” set salary agreements to cover work schedules that would render the worker eligible for overtime.

As the Arechiga decision carries several fine points, California businesses should proceed deliberately and with the aid of knowledgeable legal counsel in creating and entering such written agreements with any hourly worker. The risk of an inadequate agreement could be liability for additional overtime compensation that could reach back for up to four years of payroll.

Avoid the Employment Discrimination Gallows

As religious diversity in the American workplace increases, so does the importance of management’s understanding how to address conflicts that arise. The Equal Employment Opportunity Commission (EEOC), responsible for enforcing the federal law prohibiting discrimination in commerce has recently published a guide to help employers with the task (“Questions and Answers: Religious Discrimination in the Workplace,” January 31, 2011).

That federal law (Civil Rights Act of 1964, nicknamed “Title VII”) prohibits:

• Treating applicants or employees differently based on their religious beliefs or practices – or lack thereof – in any aspect of employment, including recruitment, hiring, assignments, discipline, promotion, and benefits (called “disparate treatment”);

• Subjecting employees to hostility, insults, or other harassment because of their religious beliefs or practices – or lack thereof – or because of the religious practices or beliefs of people with whom they associate (e.g., relatives, friends, etc.);

• Failing to seek and work out a requested reasonable accommodation of an applicant’s or employee’s sincerely held religious beliefs or practices if an accommodation will not impose more than a minimal cost or burden on business operations or finance; and

• Retaliating against an applicant or employee because he or she has engaged in protected activity, including the filing or voicing of a complaint over perceived religious discrimination or harassment.

The EEOC article also explains how that agency defines “religion,” specifies exceptions to Title VII’s religious provisions, and illustrates what is meant by “religious harassment” as well as some common ways to accommodate religious beliefs in the workplace.

We have also published a recent article on the subject, “Avoiding Religious Discrimination in the Workplace,” Bowles Law Report, Vol. 9, Issue 4.

If you have questions in the area, please let us know.